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Migration Amendment (Abolishing Detention Debt) Bill 2009

Schedule 1 Amendments

Part 1 General amendments

Migration Act 1958

1  Section 145

Before “If”, insert “(1)”.

2  At the end of section 145

Add:

             (2)  For the purposes of paragraph (1)(c), the cost of keeping the non-citizen in Australia does not include the cost of immigration detention (if any).

3  At the end of section 146

Add:

             (3)  For the purposes of paragraph (1)(b), the cost of keeping the non-citizen in Australia does not include the cost of immigration detention (if any).

4  Section 147

Before “If”, insert “(1)”.

5  At the end of section 147

Add:

             (2)  For the purposes of paragraph (1)(c), the cost of keeping the non-citizen in Australia does not include the cost of immigration detention (if any).

6  Section 148

Before “If”, insert “(1)”.

7  At the end of section 148

Add:

             (2)  For the purposes of paragraph (1)(c), the cost of keeping the non-citizen in Australia does not include the cost of immigration detention (if any).

8  Transitional—cessation of arrangements to the extent that they relate to detention debt

(1)       An arrangement:

                     (a)  referred to in paragraph 145(c), 146(1)(b), 147(c) or 148(c) of the Migration Act 1958 ; and

                     (b)  that existed immediately before the commencement of this Part;

ceases to have effect on that commencement to the extent that it was an arrangement to pay the Commonwealth an amount relating to the cost of a person’s immigration detention.

(2)       This item does not affect the validity of a certificate given under section 145, 146, 147 or 148 of that Act.

9  Subsection 151(3)

Omit “, accommodation or immigration detention”, substitute “or accommodation (other than immigration detention)”.

10  Division 10 of Part 2 (heading)

Repeal the heading, substitute:

Division 10 Costs etc. of removal and deportation

11  Section 207 (definition of costs )

Repeal the definition, substitute:

costs means the fares and other costs to the Commonwealth of transporting:

                     (a)  a non-citizen; and

                     (b)  a custodian of the non-citizen;

from Australia to the place outside Australia to which the non-citizen is removed or deported.

12  Section 207 (definition of daily maintenance amount )

Repeal the definition.

13  Sections 208, 209 and 211

Repeal the sections.

14  Subsection 213(1)

Omit all the words after “the carriers”, substitute “of the non-citizen to pay the costs of the non-citizen’s removal, or deportation, from Australia should that happen.”.

Note:       The heading to section 213 is altered by omitting “ detention, ”.

15  Section 214

Omit “detention,”.

16  Paragraphs 222(1)(a) and (b)

Omit “209, 210, 211”, substitute “210”.

17  Paragraphs 223(2)(b) and (c)

Omit “209, 210, 211”, substitute “210”.

18  Paragraphs 223(10)(b) and (c)

Omit “209, 210, 211”, substitute “210”.

19  Paragraphs 224(3)(c) and (d)

Omit “209, 210, 211”, substitute “210”.

20  Subsections 224(4) and (5)

Omit “209, 210, 211”, substitute “210”.

21  Section 262

Before “A”, insert “(1)”.

22  Paragraph 262(c)

Omit “a fair amount”, substitute “the amount applicable to the person under subsection (2)”.

23  At the end of section 262

Add:

             (2)  The Minister may, by legislative instrument, determine a daily amount for the keeping and maintaining of a person in immigration detention at a specified place in a specified period.

             (3)  An amount determined under subsection (2) is to be no more than the cost to the Commonwealth of detaining a person at that place in that period.

24  Subsection 474(4) (table item 1)

Omit “detention,”.

25  Extinguishment of outstanding detention debts

(1)       An immigration detention liability that existed under one or more of the following immediately before the commencement of this Part:

                     (a)  section 209, 211, 262 or 264, or subsection 151(3) or 213(3), of the Migration Act 1958 ;

                     (b)  an undertaking or obligation prescribed by regulations made for the purposes of subsection 140H(1) of that Act;

                     (c)  an arrangement referred to in paragraph 145(c), 146(1)(b), 147(c) or 148(c) of that Act;

                     (d)  any other instrument;

ceases on the commencement of this Part.

(2)       In this item:

immigration detention liability means a liability to the extent that it was a liability to pay the Commonwealth an amount relating to the cost of:

                     (a)  a person’s immigration detention; or

                     (b)  a non-citizen’s detention under the Migration Act 1958 .

Note 1:    The liability ceases to be recoverable as a debt.

Note 2:    The liability ceases even if the Commonwealth had previously written it off.

Note 3:    This item does not apply to a liability to the extent that a person had already discharged it.

Note 4:    This item does not cease a person’s liability, under section 262 of that Act, to pay the costs of immigration detention for detention happening after the commencement of this Part.



 

Part 2 Amendments relating to sponsorship undertakings

Migration Act 1958

Note:       This Part does not commence if Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act 2008 commences before (or at the same time as) Part 1 to this Schedule. If that happens, the corresponding amendments in Part 3 commence instead.

26  Subsection 140H(1) (paragraph (b) of the note)

Omit “, detaining”.

27  At the end of section 140H

Add:

             (5)  Regulations made for the purposes of subsection (1) cannot prescribe an undertaking to pay the cost of a person’s immigration detention.

28  Subsection 140I(4)

Omit “and detaining”.

29  Transitional—cessation of undertakings to the extent that they relate to detention debt

An undertaking:

                     (a)  prescribed by regulations made for the purposes of subsection 140H(1) of the Migration Act 1958 ; and

                     (b)  that existed immediately before the commencement of this Part;

ceases to have effect on that commencement to the extent that it was an undertaking to pay the Commonwealth an amount relating to the cost of a person’s immigration detention.



 

Part 3 Amendments relating to sponsorship obligations

Migration Act 1958

30  Subsection 140H(1) (paragraph (b) of the note)

Omit “, detaining”.

31  At the end of section 140H

Add:

             (7)  The regulations cannot prescribe, as a sponsorship obligation, an obligation to pay the Commonwealth an amount relating to the cost of a person’s immigration detention.

32  Subsection 140J(1) (example)

Omit “and detaining”.

33  Transitional—cessation of undertakings to the extent that they relate to detention debt

An undertaking:

                     (a)  prescribed by regulations made for the purposes of subsection 140H(1) of the Migration Act 1958 ; and

                     (b)  that continued to have effect on the commencement of Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act 2008 because of Part 2 of that Schedule; and

                     (c)  that existed immediately before the commencement of this Part;

ceases to have effect on the commencement of this Part to the extent that it was an undertaking to pay the Commonwealth an amount relating to the cost of a person’s immigration detention.

Note:       This item does not commence if Schedule 1 to the Migration Legislation Amendment (Worker Protection) Act 2008 commences after Part 1 to this Schedule. If that happens, any sponsorship undertakings to pay the costs of immigration detention will have already ceased because of Part 2 of this Schedule.